Page:Federal Reporter, 1st Series, Volume 9.djvu/270

 BROCKWAY V, MUTUAL BENBFIT LIFE INS. CO. 255 �that it was not a policy upon the life of Brockway taken out in good faith, but a mere cover for a wager policy. If you so find, there can be no recovery upon the policy, and your verdict must be for the defendant. �A creditor, however, bas an insurable interest in the life of his debtor, and may take out a policy upon the life of the latter, or the policy may be taken out in the name of the debtor and assigned to the creditor. It is daimed by Seybert that this is the character of the transaction under investigation. He produces, and bas given in evidence, a note dated December 26, 1867, for $10,000, payable to him or his order one day after date, and purporting to be signed by Beck- with S. Brockway. He has also given in evidence an assignment dated March 30, 1868, from Brockway to him (Seybert) for $8,000 of the policy in suit, He claims, you pereeive, to be the crediter of Brockway j and that he was such at the time this policy was taken out, and that it was procured on account of that indebtedness. If Brock- way was indebted to Seybert, as claimed by him, in the sum of $10,000, and the policy was taken out with reference to that indebt- edness, then it was not a wager policy, and this branch of the defence (if you 80 find the facts to be) would fail. Are you satisfied that there was such indebtedness? The note for $10,000, purporting to be signed by Brockway, is in evidence, but its genuineness is contro- verted. It is for you to determine, under all the evidence, whether or not the signature to the note is the genuine signature of Beckwith S. Brockway. But if you should find that it is his signature, the vital question still remains whether it fepresents a honafide indebted- ness. Did Brockway actually owe Seybert $10,000, or is this note but a part of the alleged confederacy between Brockway and Seybert, whereby the latter was to take out a merely speculative insurance upon the life of the former ? �Upon this branch of the case Seybert relies upon the note itself, and has given no other evidence to show the alleged indebtedness, or how or when it originated. Mrs. Cooper testifies that she was present when the note was signed ; but she is silent as to everything beyond the mere fact of the signing of the note by Brockway. In the absence of any testimony by Mrs. Cooper as to the payment of any money by Seybert to Brockway, or the passing of any consider- ation at the time the note was executed, it is reasonable to assume that no consideration then passed between the parties. I cannot recall any evidence whatever, aside from the note itself, tending to show the alleged indebtedness. ��� �